Cohen v. Public Housing Administration Appellant's Brief

    United States (Emtrt of Appeals
Fifth Circuit

No. 16,866

QUEEN COHEN,

v.
Appellant,

PUBLIC HOUSING ADMINISTRATION, et ah,
Appellees.

APPELLANTS BRIEF

A. T. W alden,
200 Walden Building, 
Atlanta 3, Georgia.

Constance B aker Motley, 
T htjrgood Marshall,

107 West 43rd Street,
New York 36, N. Y.

Attorneys for Appellant.



Inttffi States (£mtrl nf Appeals
Fifth Circuit

No. 16,866

-------------o-------------

Q ueen  C o h e n ,

v.
Appellant,

P u blic  H ousing  A d m in istra tio n , et al.,
Appellees.

.................... .................... o — — _ _ _ _ _ _

APPELLANT’S BRIEF

Statement of the Case

This case involves governmentally enforced racial 
segregation in public housing in Savannah, Georgia.

The present appeal is from an order of the United 
States District Court for the Southern District of Georgia, 
Savannah Division, dismissing appellant’s cause of action 
after a full trial on the merits on the grounds that 1) the evi­
dence failed to- establish that appellant had made applica­
tion for admission to any public housing project and 2) 
the undisputed testimony shows that appellant was not 
entitled to a statutory preference for admission under 
Title 42, United States Code, § 1410(g) or § 1415(8)(c). 
Heyward, et al. v. Public Housing Administration, et al,
154 F. Supp- 589.

Before the trial on the merits, appellant was one of 
several original plaintiffs who took a prior appeal to this 
court from orders of the court below dismissing the com­
plaint herein. Heyward, et al. v. Public Housing Adminis­
tration, et al, 238 F. 2d 689 (1956), rev’g 135 F. Supp. 217.



2

Just prior to commencement of trial, all of the other 
named plaintiffs voluntarily withdrew as plaintiffs and 
the action was maintained by this appellant on behalf of 
herself and others similarly situated (R. 7, 40-42).

From the entire record in this case, the following facts 
appear:

1. The housing program involved in this case is low 
rent public housing provided for by the United States 
Housing Act of 1937, as amended,1 (PHA Exhibit 1). This 
is a program whereby the federal government, through the 
Public Housing Administration, and local public housing- 
agencies established by law in the several states, enter into 
contracts for the construction, operation and maintenance 
of decent, safe and sanitary dwellings (PHA Exhibit 1). 
These dwellings are available to only those families who, 
because of their low incomes, are unable to secure decent, 
safe and sanitary private housing at the lowest rates at 
which such private housing is being provided in the locality 
(R. 85).

2. The Public Housing Administration, hereinafter 
referred to as PHA, and the Housing Authority of Savan­
nah, Georgia, hereinafter referred to as SHA, have entered 
into contracts for construction, operation and maintenance 
of such public housing projects in the City of Savannah 
(PHA Exhibit 1).

3. PHA does not enter into contracts with local hous­
ing agencies in the absence of a demonstrated need for such 
housing in the locality concerned (R. 85). The present 
need for low rent public housing in Savannah has been 
determined by a survey of the total volume of decent, safe 
and sanitary dwellings available to families of low income. 
This survey was made by SHA in connection with its plans 
for construction of a new 337 unit project for Negro oc­

1 Title 42, United States Code, § 1401, et seq.



3

cupancy. This survey concludes that there is no decent, 
safe and sanitary rental housing available in Savannah 
for families who qualify for low rent public housing and 
that the only sales housing available for such families is 
reported to be selling between $6,000 and $7,000, but the 
majority of such housing is selling at prices in excess of 
$7,000 (R. 110-112, Plaintiff’s Exhibits 7 and 8).

4. In Savannah, persons eligible for low rent public 
housing by virtue of their low incomes are as follows:

a) Two person families, maximum income limit 
$2,500.

b) Three or four person families, maximum income 
limit $2,700.

c) Five or more person families, maximum income 
limit $2,900.

d) Maximum income allowed for continued occu­
pancy after admission, $3,200 (Plaintiff’s Ex­
hibit 10, Answers to Interrogatory No. 6, R. 83).

These maximum income limits and the rent schedules 
applicable to public housing in Savannah have been deter­
mined by SHA and approved by PHA (R. 67, 79).

5. In the development of public housing projects in 
Savannah, SHA applies to PHA for preliminary loans for 
the purpose of making surveys to determine the need, for 
the purpose of developing plans for the projects, and for 
the purpose of paying cost of construction of projects. 
SHA’s bonds are subsequently sold to the public and the 
federal government, through PH A’s contracts with SHA, 
has guaranteed repayment of these bonds. PHA has also 
agreed to contribute, when necessary, a cash subsidy in an 
amount up to four per cent of the total shelter rents of all 
projects to assist in amortization and payment of interest 
upon such bonds. Preliminary loans for surveys, plans



4

and construction are made directly by PHA to SHA and 
bonds of SHA are not sold until after such preliminary 
loans have been made (R. 56, 70-71, 169).

6. PHA has a regional office in Atlanta, Georgia 
(R. 48). This office actually executes the contracts in­
volved in this case with SHA (R. 49-50). The following 
functions are performed by the regional office in Savannah: 
Annual audit of books of SHA, review of the admissions 
of tenants and calculations of rent by SHA, review of 
SHA’s budget, approval of all sites selected by SHA 
(R. 51-52). All plans and specifications for public housing 
projects are subject to approval by PHA (R. 74). During 
construction of each project, a project engineer on the 
staff of PHA Regional Office in Atlanta is stationed in 
Savannah for the purpose of determining whether the con­
struction is proceeding in accord with plans and specifica­
tions approved by PHA (R. 74). PHA also conducted its 
own survey in Savannah to determine the present need in 
that city for public housing (R. 84). PH A’s regional office 
also has a staff member whose primary function is to con­
sider and approve the treatment afforded Negro families 
(R. 57).

7. In case of any substantial default with respect to 
the terms and conditions of the contracts between PHA 
and SHA, PHA has the power to take over and operate 
the project with respect to which the default occurs 
(R. 71-73).

8. The first public housing units in Savannah opened 
for occupancy in 1940 (R. 115). Six projects have been 
constructed since that date under the provisions of the 
United States Housing Act of 1937, as amended (R. 81). 
Two former defense public housing projects previously 
owned by PHA have been transferred to SHA for use as 
low rent public housing projects and are now operated the 
same as the other six projects (R. 68, 79). SHA has agreed 
to pay the net proceeds of the rents collected from these



5

projects to PHA for the next 40 years (R. 69). A project 
is presently under construction (R. 81). When this project 
is completed, there will be a total of nine public housing 
projects in Savannah (R. 81), A tenth public housing- 
project consisting of 800 units is in the planning stage 
(R. 86).

Of the six projects already built under the United 
States Housing Act of 1937, as amended, three, Fellwood 
Homes, Fellwood Annex, and Yamacraw Village, are 
occupied by Negro families. Three are occupied by white 
families (R. 81-82). The two former defense housing 
projects were occupied by white families, only, when owned 
by PHA and are still occupied by white families only 
(R. 68). The project presently under construction and 
the proposed 800 unit project are planned for Negro occu­
pancy (R. 93).

9. Limitation of certain projects to Negro occupancy 
and the limitation of others to white occupancy is approved 
by PHA through approval of SHA’s Development Pro­
grams which must reflect application of PH A’s racial 
equity requirement (R. 54-55).2 PHA, by its adminis­
trative rules and regulations, requires that a local pro­
gram “ reflect equitable provision for eligible families of 
all races determined on the approximate volume of their 
respective needs for such housing”  (Plaintiff’s Exhibit 2, 
PHA Racial Policy). The need of the two races is de­
termined primarily by the approximate volume of sub­
standard housing* occupied by each race (R. 91-92). 
Application of this formula resulted in the present deter­
mination that equitable provision for Negro families in 
Savannah requires that they be provided with approx­
imately 75% of the total number of family units and that 
equitable provision for white families requires that they 
be provided with approximately 25% of the total number

2 The two most recent Development Programs were sent up to 
this court in their original form. Plaintiff’s Exhibits 7 and 8.



6

of family units (R. 106-107). However, N egroes presently 
occupy only 42.7% of the existing units and whites, be­
cause of the addition of the two former defense housing 
projects to the public housing supply, presently occupy 
57.3% of the existing units (R. 104). The Development 
Programs when approved by PHA become a part of the 
contracts between PHA and SHA (R. 53-178). Once a 
determination is made as to the approximate per cent of 
the total number of units to be occupied by Negro f a milies 
and the per cent of units to be occupied by white f amilies, 
PHA would object to a deviation from these percentages 
by SHA (R. 181).

10. The need for public housing among’ Negro families 
in Savannah has always been disproportionately greater 
than the need among white families (R. 86-87).

11. The most recently completed project in Savannah 
is Fred Wessels Homes which opened for occupancy in 
1954 (R. 188). This project has been built on a site located 
approximately seven blocks from the main business area

1 of Savannah (R. 114). It contains 250 family units at a cost 
! of approximately $2,800,000 (R. 113). Prior to construction 
S of this project, the site was occupied by 250 Negro families 
f an-d 70 white families (R. 102-103). This project has been 
: limited to white occupancy (R. 103).

12. Sixty-nine Negro families eligible for public hous­
ing who were displaced from the site of Fred Wessels 
Homes and who made application to SHA for relocation, 
were relocated in Fellwood Homes Annex, a project con­
taining 127 units, which was completed prior to Fred 
Wessels Homes for the purpose of housing Negro families 
displaced from the Fred Wessels site (R. 88, 89). Seven­
teen displaced Negro families were housed in Yamacraw 
Village, an older Negro project (R. 89).

13. Fourteen of the original eighteen plaintiffs in this 
case were former occupants of the site of Fred Wessels



Homes. These fourteen original plaintiffs were among 
those relocated in Fellwood Homes Annex (R. 125).

14. As of December 23, 1955 no white families living 
in Fred Wessels Homes were families displaced by any 
public low rent or slum clearance projects (Plaintiff’s 
Exhibit 10, Answer to Interrogatory No, 8).

15. Appellant, Queen Cohen, was not a former resident 
of the Fred Wessels site. She was a resident of a site 
across the street from the Fred Wessels site. She was 
displaced from her home when a commercial enterprise 
which had been located on the site of Fred Wessels Homes 
moved its business to the site of appellant’s former resi­
dence (R. 204-205). When appellant received a thirty day 
notice from her landlord to vacate, she went to the office 
of SHA which is located in the Fred Wessels Homes, for 
the purpose of making application for a family unit 
(R. 131). She was advised by a white male employee that 
the Fred Wessels project was not for Negro families 
(R. 133). She was not permitted to make a formal applica­
tion (R. 133). At that time the buildings were completed 
but unoccupied (R. 135).' Appellant desires to live in Fred 
Wessels Homes (R. 139). She is the mother of four chil­
dren, one of whom is in the armed services of the United 
States (R. 133). Her husband is employed and earns fifty 
dollars per week (R. 206).

16. Part II, Section 209 of the Annual Contributions 
Contract between PHA and SHA provides that service­
men and families of servicemen are to be given preference 
for admission and as among such servicemen preference 
is given to displaced families, i. e., families displaced by a 
public housing project or public slum clearance project8 
(Plaintiff’s Exhibit 1). Subject to the preferences estab­
lished by Section 209, priority with respect to admission 
is also given to families having the greatest urgency of 3

3 This proyision is based upon the requirements of Title 42, 
United States Code § 1410(g).



8

need by the provisions of Section 208 of said contract.4 
PHA has the responsibility of seeing that these prefer­
ences are applied (R. 175). However, because of the
racially segregated projects in Savannah, these priorities 
operate with respect to Negro applicants only as to those 
projects limited to Negro occupancy and as to white 
families only with respect to those projects limited to white 
occupancy (R. 172).

17. The evidence shows that other Negroes also went 
into the office located in Fred Wessels Homes to apply for 
housing. Those who did so were housed in Fellwood 
Homes. None was considered for admission, or permitted 
to apply for admission, to Fred Wessels Homes (R. 95-97).

18. Prior to the opening of Fred Wessels Homes for 
occupancy, SHA publicly announced that this project 
would be for white occupancy (R. 112).

19. The manager of Fred Wessels Homes who took 
applications understood that the project was limited to 
white occupancy (R. 201).

20. Applicants for public housing in Savannah make 
application for housing but may state a preference for 
admission to a particular project. However, the ultimate 
determination as to the project in which the applicant 
family will reside remains with SHA (R. 96-97).

21. \ The public housing program in Savannah is a 
long range program which is not yet completed and it 
appears that in the future preliminary loans for the con­
struction of other racially segregated projects will be made 
by PHA to SHA and that the amount of these funds will 
be well in excess of $3,000. (R. 93, 71).

22. Section 206 of the Annual Contributions contract 
provides that citizen families of servicemen are eligible

4 This provision is based upon the requirements of Title 42, 
United States Code § 1415(8) (c ) .



9

for admission if they are regularly living together as a, 
family of two or more persons related by blood, marriage, 
or adoption and if their net income, less an exemption to 
be established by the local authority not in excess of $100 
for each minor member of the family other than the head 
of the family and his spouse, does not exceed the applicable 
income limit for admission established by the local au­
thority and approved by PHA.5

Specification of Errors

1. The trial court erred in dismissing appellant’s suit, 
after a full trial on the merits, on the ground that appel­
lant failed to prove that she had ever made application 
for admission to Fred Wessels Homes.

2. The trial court erred in finding and concluding that 
appellant was not entitled to any preferential rights of 
admission under the United States Housing Act of 1937, 
as amended.

3. The trial court erred in refusing to grant the relief 
to which appellant is entitled.

0 Title 42, United States Code § 1402(14) provides that, “ The 
term ‘serviceman’ shall mean a person in the active military or naval 
service of the United States who has served therein at any time * * * 
(iii) on or after June 27, 1950, and prior to such date thereafter as 
shall be determined by the President.”



10

ARGUMENT

I. The Court Below Erred In Ruling That Appel­
lant’s Case Must Be Dismissed For Failure To Prove 
That She Had Applied For Admission To A Public 
Housing Project.

In this action appellant’s primary objective is to enjoin 
defendants from enforcing racial segregation in public 
housing, so that she, and others similarly situated, may 
be permitted to apply for admission to Fred Weasels 
Homes and five other public housing projects in Savannah 
which are presently limited to white occupancy, so that 
their applications may be considered on the basis of stat­
utory requirements for admission, without reference to 
their race and color, and so that statutory preferences for 
admission will be applicable to all vacant units and not 
just to vacant units in projects limited to Negro occupancy. 
Heyward, et al. v. P.H.A., et al., 238 F. 2d 689 (C. A. 5th, 
1956).

In their answer to the complaint and upon the trial of 
this cause defendant SHA and its officers admitted that 
public housing in Savannah is operated on a racially 
segregated basis (R. 28-30, 121).

Defendant PHA denied in its answer that the projects 
are operated on a racially segregated basis (R. 34). How­
ever, upon the trial of this case it was proved conclusively 
that not only are pro jects operated on a racially segregated 
basis with the knowledge and consent of PHA (R. 67-68) 

but are so operated in an attempt to comply with PH A’s 
racial equity requirement which is, in fact, a racial quota 
requirement from which SHA cannot deviate without vio­
lating its contract with PHA and without objection from 
PHA (R. 54-55, 91-92, 181).

Therefore, in view of the fact that Fred Wessels Homes 
and five other projects have been limited to white oecu-



11

pancy, it would have been a vain act for appellant to have 
filled out an application form for admission to any of these 
projects. This court and the Fourth Circuit have very 
recently reaffirmed the well established principle that 
equity does not require the doing of a vain act in cases in­
volving gov ernmentally enforced racial segregation. 
Gibson v. Board of Public Instruction of Dade County, 246 
F. 2d 913 (C. A. 5, 1957); School Board of City of Char­
lottesville, Va. v. Allen, 240 F. 2d 59 (C. A. 4, 1956).

Consequently, the ruling of the court below was clear 
error.

Despite the fact that appellant was not required to 
prove that she had applied for projects limited to white 
occupancy, appellant nevertheless proved that she had 
attempted to make application for Fred Wessels Homes 
but was told by a white male employee that the project was 
not for Negroes (R. 132-133).

Appellant’s fruitless attempt to apply was corrob­
orated by the person who accompanied her when she went 
to the office in Fred Wessels Homes (R. 146-147).

Appellant’s testimony that there is an office upstairs 
in Fred Wessels Homes with white male employes to 
whom appellant could have spoken was corroborated bĵ  
the testimony of Millard Williams who was the manager 
of the Fred Wessels Homes at the time appellant attempted 
to apply (R. 193-194).

The Defendant Secretary and Executive Director of 
SHA testified that he had never seen appellant before the 
trial (R. 186), but he also testified that he did not per­
sonally take applications (R. 186). Therefore, his testi­
mony did not contradict appellant’s testimony with regard 
to her attempt to make an application in the Fred Wessels 
Homes.



12

The manager of the Fred Wessels Homes testified that 
appellant did not come to him (R. 187). But it is clear 
from appellant’s testimony that she did not go into the 
manager’s office which was on the ground floor (R. 192) 
but to the executive offices upstairs (R. 144). The man­
ager also admitted that it was possible for appellant to 
have come in and that he did not see her (R. 191).

Thus, appellant established, without contradiction, that 
she attempted to apply for a unit in Fred Wessels Homes, 
after the buildings were completed but before anyone had 
moved in, in the executive offices in one of the project’s 
buildings, and that she was not permitted to apply solely 
because of her race and color.

II. The Court Below Erred In Ruling That Appel­
lant Failed To Prove That Defendants Refused Her 
Any Preferential Right Of Occupancy Or That She 
W as Entitled To A  Preference.

The highest preference for admission to the public 
housing involved in this case is the preference given to 
servicemen and families of servicemen both by statute and 
by the terms of the contract between PHA and SHA, Title 
42, United States Code, "S 1410(g), Annual Contributions 
Contract, Part II, Section 209 (Plaintiff’s Exhibit 1), and 
as among such servicemen and families of servicemen, 
preference is given to displaced families.

Appellant has a son who is presently serving in the 
armed services (R. 133).

In addition, appellant was displaced as an indirect re­
sult of the construction of Fred Wessels Homes (R. 204- 
205). The testimony in this case also shows that the 
overwhelming majority of persons directly displaced by 
the construction of Fred Wessels Homes were Negroes 
(R. 102-103).



13

Subject to the preferences given to servicemen and 
displaced families, families having the greatest urgency 
of need are also entitled to a preference for admission. 
Title 42, United States Code § 1415(8) (c), Annual Con­
tributions Contract, Part II, Section 208. The defendant 
Secretary of SHA testified and the surveys attached to 
the Development Programs show that the need for public 
housing among Negro families in Savannah has always 
been disproportionately greater than the need among white 
families (R. 87, Plaintiff’s Exhibits 7 and 8). At the time 
appellant sought admission to Fred Weasels Homes she 
had received a notice from her landlord to vacate (R. 204). 
She was forced to vacate because the house in which she 
was living was torn down by a commercial establishment 
which had been displaced by construction of Fred Weasels 
Homes (R. 204-205). This made her need particularly 
urgent and also established her eligibility. Annual Con­
tributions Contract, Part II, Section 206(A)(3).

Annual Contributions Contract, Part II, Section 206 
provides, in addition, that citizen families of service­
men are eligible for admission if they are regularly living 
together as a family of two or more persons related by 
blood, marriage, or adoption and if they meet the income 
requirements. This appellant’s family meets all of these 
eligibility requirements (R. 133, 205).

The conclusion is thus inescapable that appellant and 
the members of the class which she represents are precisely 
the persons for whom the statutory preferences were 
designed.

The Assistant Commissioner of PITA who testified for 
PHA on the trial admitted that where projects are segre­
gated the statutory preferences operate for Negroes only 
with respect to those projects limited to Negroes and that 
this is the interpretation placed on the statutes by PHA



1.4

(R. 172). He also admitted that it is the responsibility of 
PHA to see that these statutory preferences are carried 
out6 (E. 175).

Defendants therefore deny Negroes, as a group, the 
preferences to which they are entitled, solely because of 
race and color, and PHA fails to carry out its responsibility 
under the statute to them. See, Heyward, et al. v. Public 
Housing Administration, et al., 238 F. 2d 689, 697 (C. A. 5, 
1956).

III. The Court Below Erred In Refusing To Grant 
The Relief To Which Appellant Is Entitled.

The court below dismissed appellant’s cause of action 
after a full trial on the merits which established the facts 
set forth above. These facts clearly establish that appel­
lant is entitled to 1) an injunction enjoining defendants 
from enforcing racial segregation and racial quotas in 
public housing; 2) an injunction enjoining defendants from 
refusing to extend the statutory preferences for admissions 
to appellant, and members of her class, to projects limited 
to white occupancy; 3) an injunction enjoining defendant 
SHA and its agents from refusing to accept and properly 
consider appellant’s application, and the applications of 
other Negroes, for admission to Fred Wessels Homes and 
other projects limited to white occupancy; and 4) an in­
junction enjoining PHA from giving financial and other 
aid to SHA, in the future, for the construction, operation, 
and maintenance of racially segregated projects. Heyward, 
et al. v. Public Housing Administration, et al. 238 F. 2d 
689 (C. A. 5, 1956).

Eule 54 of the Federal Rules of Civil Procedure pro­
vides,

“ * * * Except as to a party against whom a judg­
ment is entered by default, every final judgment

6 Sen. Rep. No. 84, 81st Cong., 1st Sess., 2 U. S. Code Con­
gressional Service 1566 (1949).



15

shall grant the relief to which the party in whose 
favor it is rendered is entitled, even if the party 
has not demanded snch relief in his pleadings.”

Here appellant has demanded the relief which she now 
claims she is entitled to as a result of the trial (R. 16-19).

CONCLUSION

For the foregoing reasons, the judgment of the 
court below should be reversed and the court below 
directed to grant the relief to which the appellant is 
entitled as set forth above.

Respectfully submitted,

A. T. W alden,
200 Walden Building, 
Atlanta 3, Georgia

Constance B aker Motley,
T hurgood Marshall,

107 West 43rd Street,
New York 36, N. Y.

Attorneys for Appellant.



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